Article 1: Fiduciary Instruction Series.
So, you’ve been named as somebody’s agent under power of attorney. That person (the “Principal”) is beginning to need your help making financial and healthcare decisions. What are you next steps?
1. Make Sure the Power of Attorney is Valid and Works
You first want to make sure the POA is valid. Financial POAs must be signed by the Principal and notarized, and should be recorded at the register of deeds in the county where the Principal resides. The healthcare POA must be signed by the principal and witness by two independent individuals in addition to being notarized.
The POAs should also be broad and specific. They must lay out each power given to the Agent and must define each power. It’s also important to ensure that you know when the power becomes effective I.e., whether the Principal must be considered “incompetent” before it can be used.
If the POAs are either invalid or fall short, you should seek to have them redone by an attorney while the Principal is in their right mind. Note, that this MUST be done with the Principal’s full knowledge and cooperation.
2. Make Sure the Power of Attorney is on File with the Relevant Entities
You don’t want any hitches in attempting to use the POA. Typically, the bank or life insurance company, or any other entity won’t let you use the POA until they’ be had their in-house attorneys review and approve them. Depending on the company, this can take days or weeks. Thus, it’s important to go ahead and put the POAs on file with each and every relevant entity, including the bank, primary physician, investment company, life insurance company, and the register of deeds. This is best done by mailing, emailing, or faxing a copy of the POA with a cover letter indicating your purposes for sending the document.
3. Make Sure You Know Where Everything Is
It will be difficult to act on behalf of the Principal if you don’t know where they bank, where they have their life insurance, who their primary care physician is etc. Thus, you should figure out, by talking to the Principal, where everything is. You should compile a list and keep it with the POA document. This list should also include medications, who they use for tax preparation, their attorney, the funeral home ( if they’ve prepaid their funeral), their bank accounts and number, their credit card accounts, their driver’s license information, a copy of their birth certificate, a copy of their marriage license, if any, and a copy of their social security card.
4. Speak to a Professional about Asset Protection
Lastly, you should seek the advice of a professional. There are many considerations when evaluating how to best act on behalf of someone who may not be able to act for themselves—from protecting assets to figuring out how to pay for long-term care.
An experienced Elder Law attorney should be consulted, so that you may lay out a clear and workable plan to ensure you’re doing the right thing to protect the Principal’s assets and ensure that they receive the highest possible level of care.
This gives us the legal basis for the Ladybird Deed that we now know and love.
If you or your loved one has questions we would be glad to extend a FREE CONSULT to answer those estate planning and elder law questions and get your affairs in order. Let the experienced attorneys at McIntyre Elder Law help. Call (704) 259-7040.
Brenton S. Begley
Elder Law Attorney
McIntyre Elder Law
“We help seniors maintain their lifestyle and preserve their legacies.”